Court: Virginia same-sex marriage ban unconstitutional

7/28/14 1:33 PM EDT

The 2-1 ruling from the 4th Circuit U.S. Court of Appeals upheld a district court judge's ruling in February (on Valentine's Day, actually) striking down the state's prohibition on issuing marriage licenses to same-sex couples.

"Neither Virginia’s federalism-based interest in defining marriage nor our respect for the democratic process that codified that definition can excuse the Virginia Marriage Laws’ infringement of the right to marry," Judge Henry Floyd wrote in an opinion joined by Judge Roger Gregory (and posted here). "We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws."

Judge Paul Niemeyer dissented. "Because there exist deep, fundamental differences between traditional and same-sex marriage, the plaintiffs and the majority err by conflating the two relationships under the loosely drawn rubric of 'the right to marriage,'" he wrote. "Rather, to obtain constitutional protection, they would have to show that the right to same-sex marriage is itself deeply rooted in our Nation’s history. They have not attempted to do so and could not succeed if they were so to attempt."

Niemeyer said the Virginia ban should be subjected to a rational basis test, a less strict form of review than the strict scrutiny his colleagues applied.

"While I express no viewpoint on the merits of the policy debate, I do strongly disagree with the assertion that same-sex marriage is subject to the same constitutional protections as the traditional right to marry," he added.

Floyd was appointed by President Barack Obama. Gregory received a recess appointment from President Bill Clinton after failing to be confirmed by the Senate. Gregory was later confirmed to a permanent seat after being nominated again by President George W. Bush. Niemeyer was appointed by President George H.W. Bush.

The Richmond, Va.-based 4th Circuit has now joined the Denver-based 10th Circuit, which earlier this month struck down a similar ban in Oklahoma. Both courts could ultimately send the cases to be reheard by all active judges on those courts, instead of the three-judge panels which considered them the first time around.